Abstract

Keywords

White-collar financial crime; Financial Sector Regulation Act; Financial sector regulators; Whistle-blowers; Deferred Prosecution Agreements.

……………………………………………………….

The global and rapid growth of white-collar financial crime in recent years undermines the integrity of financial systems and threatens financial stability and a strong and safe financial system. 1

* Gerda van Niekerk. BCom LLB LLD (UP). Associate Professor, Department of Mercantile and Labour Law, University of Limpopo, South Africa. Email: gertruida.vanniekerk@ul.ac.za. ORCID ID: https://orcid.org/0000-0002-8020-1616.

** Frikkie Ponelis. BA LLB LLM (US), Advanced Diploma in Labour Law (RAU). Senior Lecturer, Department of Jurisprudence, Legal Pluralism, Criminal Law and Procedure, University of Limpopo, South Africa. Email: frikkie.ponelis@ul.ac.za. ORCID ID: https://orcid.org/0009-0008-6578-9344.

1 Interpol 2023 https://www.interpol.int/en/Crimes/Financial-crime/Our-role-in-fighting-financial-crime; Interpol 2023 https://www.interpol.int/en/Crimes/Financial-crime; National Treasury 2011 http://www.treasury.gov.za/twinpeaks/20131211 %20%20Item%202%20A%20safer%20financial%20sector%20to%20serve%20South%20Africa%20better.pdf 73.

Corruption is a form of white-collar financial crime which crests the agendas of various regional and international fora. 7

7 De Man 2022 PELJ 2. The offence of corruption has its roots in the common law crime of bribery, being the practice of tendering or accepting a private advantage as a reward for the performance of a duty. Watney 2019 TSAR 750; Cordell 2020 THRHR 564.

scheduled review date on 31 January 2025 seem grim. 15

15 Bloomberg 2023 https://businesstech.co.za/news/business-opinion/723418/south-africa-wont-get-off-the-grey-list-by-2025-new-firstrand-ceo/. Moreover, the prosecution of state capture and corruption cases is proceeding at a slothful pace. Ensor 2023 https://bd.pressreader.com/article/281599540154889. Also see Masweneng 2023 https://times-e-editions.pressreader.com/article/ 282226605445166.

Organised crime has made a substantial impact on South African society as well. As indicated by the Global Organised Crime Index, released in September 2023, South Africa ranked seventh out of 193 countries in terms of the prevalence of organised crime within its borders. The global report suggests that these criminal activities are frequently exacerbated by corrupt connections, and they have firmly established a criminal economy, which in turn has eroded trust in the government and law enforcement. 17

17 Rondganger 2023 https://www.iol.co.za/news/crime-and-courts/new-global-organised-crime-index-reveals-how-the-mafia-has-taken-over-south-africa-d93ed5a1-790f-4f25-8e5a-720735ea6449.

Meanwhile South Africa is currently grappling with a significant escalation of white-collar financial criminal activities in the private sector. This phenomenon has become conspicuous through the emergence of corporate fraud scandals in recent years, implicating some of the nation's most prominent corporations. For example, in October 2023, it was revealed that a trustee associated with the BHI trust had orchestrated a Ponzi scheme that, based on initial estimates, swindled around 2 000 South African investors out of approximately 3 billion Rand. 18

18 Fischer-French 2023 https://www.news24.com/citypress/business/ponzi-scheme-involving-more-than-2-000-clients-and-more-than-r3-billion-shakes-northern-suburbs-20231029.

which battered the pension funds and personal wealth of millions of South Africans. Correspondingly a forensic investigation at sugar multinational Tongaat Hulett revealed how the company's profits were overstated by 239% and its assets by 34% when executives overvalued sugar cane and backdated land sales. This has resulted in a share price plunge of over 97% in the past five years. 21

21 Gumede 2022 https://www.businesslive.co.za/bd/companies/2022-07-25-former-tongaat-executives-r35bn-fraud-case-moves-to-high-court/.

Given the government's pronounced emphasis on addressing a surge in public sector corruption and violent crime offences, it is plausible that efforts to counteract the escalating wave of white-collar financial crime offences in the private sector might have been relegated to a lower priority. In this contribution we explore means to enhance the capability of law enforcement agencies to combat white-collar financial crime perpetrated in the private sector. White-collar financial crimes that are significant because of their complexity, seriousness, impact or repercussions will occasionally receive special emphasis, as well as those committed by individuals in companies.

We describe the terms white-collar crime and financial crime and the statutory import of the latter term. This will be followed by an overview of the statutory framework to regulate, police and prosecute white-collar financial crimes. Attention will be given to the financial regulatory system, with

specific reference to the financial sector regulators under the Financial Sector Regulation Act 27

27 Financial Sector Regulation Act 9 of 2017 (the FSR Act).

Although the term "financial crime" is occasionally utilised interchangeably with phrases such as "white-collar crime" and "corporate crime", it is important to distinguish these notions. 29

29 Budhram and Geldenhuys 2017 SACJ 7-8; Gottschalk Explaining White-Collar Crime 4.

Financial crimes are characterised by an absence of violence, a motive of financial acquisition, an actual or potential loss and an element of misrepresentation or deceit, 31

31 Budhram and Geldenhuys 2017 SACJ 7-8.

of the Protection of Constitutional Democracy against Terrorist and Related Activities Act 33 of 2004. 34

34 Section 1(1) of the FSR Act.

It can therefore be concluded that financial crimes comprise of offences in terms of the following legislation: the FSR Act, the Pension Funds Act, 37

37 Pension Funds Act 24 of 1956.

Common examples of financial crimes include mortgage fraud, medical fraud, corporate fraud, point of sale fraud, currency fraud, health care fraud, insurance fraud, and acts such as insider trading, tax violations, kickbacks,

embezzlement, identity theft, cyber-attacks, money laundering, currency counterfeiting, intellectual property crime, computer virus attacks, social engineering and cyber-terrorism. 53

53 Gottschalk 2010 Journal of Financial Crime 442; Toner 2009 Journal of Financial Crime 43; Chitimira and Ncube 2021 PELJ 23.

Ultimately, financial crimes range from low to high level and from petty to grand and involve public officials, individual members of the public, companies and corporates. 56

56 Budhram and Geldenhuys 2018 Acta Criminologica 27.

A common difficulty for law enforcement agencies is the detection of financial crime. This is because of the complicated record and accounting systems that form part of modern commerce, which give offenders the room to alter financial spreadsheets, statements and accounts. 59

59 Gottschalk et al 2011 International Journal of Information Management 227.

Some leading organisational behaviourists describe white-collar crime in terms of offence and the offender. 60

60 Gottschalk et al 2011 International Journal of Information Management 227; Benson and Simpson White-Collar Crime; Hansen 2009 Journal of Financial Crime 29.

property committed by non-physical means and by concealment and deception for personal or organisational benefit. 61

61 Gottschalk et al 2011 International Journal of Information Management 227. Also see Benson and Simpson White-Collar Crime 1-17 on Edwin H Sutherland, who coined the term in 1937 and defined it "as a crime committed by a person of respectability and high social status in the course of his occupation."

In this contribution we examine key issues relating to the prosecution of white-collar crime as a species of financial crime. We are continuing to review the legal framework for the regulation and prevention of white-collar financial crime in South Africa.

South Africa has multiple regulatory bodies to supervise, monitor, and enforce compliance with legislation. In view of the wide range of financial crimes displayed in the FSR Act, such crimes fall in the province of several regulators. We focus on a specific category of regulators, namely the financial sector regulators in terms of the FSR Act, by providing an outline of their powers and functions in relation to financial crimes.

In 2007 the South African Department of National Treasury launched a review of the country's financial regulatory system, which in February 2011 occasioned a policy paper entitled "A Safer Financial Sector to Serve South

Africa Better". 65

65 National Treasury 2011 http://www.treasury.gov.za/twinpeaks/20131211 %20%20Item%202%20A%20safer%20financial%20sector%20to%20serve%20South%20Africa%20better.pdf; Rajendaran 2012 http://www.ifmr.co.in/blog /2012/03/06/approaches-to-financial-regulation-and-the-case-of-south-africa/ comments that this document set out proposals for strengthening the financial regulatory system. The core of the policy was the adoption of the Twin Peaks model of financial regulation in South Africa. It was in part a recognition of the fact that there had been a global shift from the single regulator model to the Twin Peaks model after the crisis.

The overall regulatory scheme envisaged by the FSR Act encompasses a holistic approach to combatting financial crime and to regulating and preventing financial institutions from complicity. 76

76 National Treasury 2011 http://www.treasury.gov.za/twinpeaks/20131211%20% 20Item%202%20A%20safer%20financial%20sector%20to%20serve%20South%20Africa%20better.pdf 73-78.

crime. 77

77 Sections 105(2)(b), 106(2)(d) of the FSR Act.

The FSR Act further establishes the Financial System Council of Regulators (the FSCR) as a body to facilitate cooperation and collaboration as well as consistency of action between the institutions represented by it. 79

79 Section 79 of the FSR Act.

The FSR Act determines that the responsible authority for a financial sector law may commence proceedings against a person in the High Court for an order to ensure compliance with the financial sector law. 83

83 Section 152(1) of the FSR Act.

compliance with financial sector laws, 85

85 Section 152(1) of the FSR Act.

Criminal conduct in the financial sector remains an unfortunate reality. The powers of financial sector regulators cease when such misconduct is identified. 87

87 See Kawadza 2015 SA Merc LJ 385 on weaknesses in the enforcement of financial crime.

We do not propose that regulators be given additional powers relating to the prosecution of offenders of white-collar financial crimes. In our submission the current legal framework is adequately equipped to deal with criminal conduct in the financial sector. However, challenges arise in the practical application of this framework. We accordingly propose that systemic problems be addressed within the confines of the framework. To contextualise our suggestions, we proceed with an overview of the roles, functions, and powers of the SAPS and the NPA, as the State's key law enforcement agencies in the criminal justice system, and the judiciary.

Under section 205(3) of the Constitution, the SAPS is the primary agency to investigate, prevent and combat crime in the country. This statement is supported by the Criminal Procedure Act 89

89 Criminal Procedure Act 51 of 1977 (the CPA).

The SAPS is headed by the National Commissioner, who is appointed by the President and is vested with its overall control and management, including the appointment of Provincial Commissioners for each of the

provinces. 91

91 Sections 6, 11 and 12 of the SAPSA. Also see s 207(1) of the Constitution.

In terms of section 179 of the Constitution, the NPA is the sole agency allowed to prosecute offenders on behalf of the State. Besides the prosecution of offenders, the powers of the NPA extend to powers of investigation. 97

97 Section 22(4)(a)(i) of the National Prosecuting Authority Act 32 of 1998 (the NPAA).

The NPA conducts investigations and prosecutions through several business units, investigative directorates and units established by

legislation beyond the NPAA, for example the Investigating Directorate, the Specialised Commercial Crime Unit, the Special Investigating Unit and the Asset Forfeiture Unit. Of these, only the Specialised Commercial Crime Unit is tasked solely with the investigation of financial white-collar crimes, although its powers are restricted to cases identified by the NDPP and the DPCI. 100

100 NPA date unknown https://www.npa.gov.za/specialised-commercial-crime-unit.

The South African judiciary is independent from the legislative and executive branches and subject only to the Constitution. It vests in the Constitutional Court, the Supreme Court of Appeal, the High Court and the Magistrates' Courts. 105

105 Sections 165-166 of the Constitution.

The Magistrates' Courts comprise of district courts and regional courts. 109

109 Sections 1-2 of the Magistrates' Court Act.

maximum of 15 years. 110

110 Section 92(1) of the Magistrates' Court Act; GN R217 in GG 37477 of 27 March 2014. See also ss 286(1) and 286A(1) of the CPA; s 51 of the Criminal Law Amendment Act 105 of 1997; s 89 of the Magistrates Courts Act.

The High Court comprises of nine divisions, each with territorial jurisdiction over the persons and triable offences in the areas for which they are composed. 112

112 Sections 6, 21 of the Superior Courts Act.

With a plethora of regulatory authorities and law enforcement agencies, and a comprehensive and independent judicial system, South Africa has a sturdy legal framework to address white-collar financial crime. Notwithstanding, the country's performance in combatting white-collar financial crime remains unsatisfactory because of the difficulties in identifying complex white-collar financial crime and securing convictions through the criminal justice system. 113

113 Lekubu 2019 Acta Criminologica 85; Kasipo 2016 AMLJA 6.

Considering the manner in which the SAPS presents crime statistics in its annual reports, there is a challenge in ascertaining the precise quantity of new white-collar financial crime cases that are routinely referred to the police annually. 114

114 Budhram and Geldenhuys 2017 SACJ 8-9.

reported instances of white-collar financial crimes and the subsequent prosecutorial actions undertaken in response thereto.

Regardless, there is an implicit systemic difficulty that various occurrences of white-collar financial crime are not brought to the attention of law enforcement agencies. In 2020 PWC surveyed 245 companies in South Africa that had lost 1.7 billion dollars to fraud in the preceding year. An alarming tendency borne out by the survey was that 66% of the occurrences of fraud were not reported to law enforcement. One may assume that such reluctance to report might be a result of a lack of trust that the authorities will effectively action the allegations raised. Also, corporations seek to deal with matters internally in fear of facing reputational damage when internal irregularities are reported. There are strong indications, however, that numerous companies run away from the problem by failing to investigate it, or by failing to take matters beyond the investigative level. PWC shows that 42% of the respondents did not conduct internal investigations, 59% of the incidents were not reported at the board level and 72% were not reported to the company auditors. 116

116 PWC 2020 https://www.pwc.co.za/en/assets/pdf/global-economic-crime-survey-2020.pdf 4.

Besides the general lack of reporting of white-collar financial crimes, perpetrators of these crimes are often at the helm of companies, which enables them to manipulate and conceal their activities from internal company processes, the regulatory authorities and the law enforcement authorities in order to avoid detection. According to experiences in China, the largest bank frauds are committed or facilitated by people inside the banks such as the directors and executives. 117

117 Cheng and Ma 2009 Journal of Financial Crime 167.

management rose to 34% in 2020 from 20% in 2018, while accounting and financial statement fraud rose from 22% to 34%. 121

121 PWC 2020 https://www.pwc.co.za/en/assets/pdf/global-economic-crime-survey-2020.pdf 4.

The SAPS operates several units tasked with investigating, preventing, and addressing instances of white-collar financial crime in the private sector. While most are handled by the Detective Service, matters of exceptional gravity, impact, complexity or consequence may warrant referral to either the Commercial Crime Unit or the DPCI of the SAPS. Such cases may also fall within the purview of the Specialised Commercial Crime Unit of the NPA. Three prominent specialised units operating under the auspices of two distinct law enforcement agencies thereby address highly significant instances of white-collar financial crime in the private sector. In assessing the efficacy of this framework, it is instructive to draw insights from the discourse surrounding analogous structures designed to combat corruption, particularly in the realm of public sector corruption.

There is a multitude of corruption and similar crime fighting units in the SAPS and the NPA. This multi-agency approach poses challenges in terms of effective coordination, the duplication of investigations and functions, and inter-agency conflicts. Lekubu 122

122 Lekubu 2019 Acta Criminologica 84.

Should this materialise, a consequent question would be whether the unit should be situated under the NPA or the SAPS, where it would be subject to executive oversight, or whether it should be subordinated to direct parliamentary oversight. The seriousness of this concern is illustrated by a triad of Constitutional Court decisions about the disestablishment of the

former Directorate of Special Operations (the DSO) and its replacement with the DPCI. 124

124 Glenister v President of the Republic of South Africa 2009 1 SA 287 (CC) (the Glenister I case); Glenister v President of the Republic of South Africa 2011 3 SA 347 (CC) (the Glenister II case); and Helen Suzman Foundation v President of the Republic of South Africa; Glenister v President of the Republic of South Africa 2015 1 BCLR 1 (CC) (the Glenister III case).

The DSO, colloquially known as the Scorpions, was established in 2001 by the former President Thabo Mbeki to investigate and prosecute complex criminal cases. It stemmed from the need to curb the penetration of organised crime in the SAPS, and it was therefore established under the auspices of the NPA. 125

125 Khampepe 2006 https://www.gov.za/sites/default/files/gcis_document/201409/ khampeperptfinal-feb060.pdf 6.

Disquiet soon surfaced from the criminal justice and intelligence communities about the location of the DSO under the NPA as opposed to the SAPS. 128

128 The Glenister II case para 6.

relocation and amalgamation of the DSO with the SAPS, and introduced it for parliamentary approval. 132

132 The Glenister I case para 1.

In the Glenister I case the applicant challenged the cabinet's decision to approve the draft legislation. The Constitutional Court declined to entertain the merits of the application because it would be premature for the court to intervene before parliament had considered the draft legislation. 133

133 The Glenister I case para 37.

These Amendment Acts were impugned, amongst others, in the Glenister II case, for the legislature's violation of a constitutional duty to establish an independent anti-corruption unit. 136

136 The Glenister II case paras 17-18.

Parliament thereafter approved the South African Police Service Amendment Act 141

141 South African Police Service Amendment Act 10 of 2012.

require that the DPCI be absolutely independent but that it be merely adequately independent, and that it was a practical possibility for an adequately independent anti-corruption unit to be within the SAPS. 142

142 The Glenister III case paras 9, 21; the Glenister II case para 191.

Despite these amendments to the SAPSA, there remains scepticism whether the DPCI is an adequately independent crime fighting unit. This is on account of the perception of corruption in the SAPS and the implication of recent police commissioners in criminal activity. Similar concerns prevail in connection with the executive branch that coordinates the DPCI. Given that those that oversee the DPCI could be able to influence the DPCI to turn a blind eye where required, there is a sentiment that a unit such as the DPCI could be adequately independent and effective only if it fell under parliamentary oversight and not oversight by the executive branch. 145

145 Hoffman 2012 https://accountabilitynow.org.za/hawks-saps-neither-effective-sufficiently-independent/; Budhram and Geldenhuys 2018 SACJ 29.

In a presentation to Parliament in 2021 NDPP Shamila Batohi alluded to the fact that the NPA is plagued by a lack of skill and capacity to dedicate staff to complex and voluminous matters. 146

146 GIATOC 2022 https://www.businesslive.co.za/fm/features/2022-09-21-solving-sas-white-collar-crime-puzzle/.

prosecutors and investigators in specialised units who are below the age of 40 have not yet acquired skills relating to the crime types that specialised units are tasked with. The NPA therefore identified the need for building specialisation through training courses and on-the-job skills transfer. 148

148 NPA date unknown https://www.npa.gov.za/sites/default/files/uploads/ NPA%20Annual%20Report%202022-23.pdf 14.

As has reportedly been remarked by Glynnis Breytenbach, former head of the Specialised Commercial Crime Unit, it takes 10 years to make someone into a good, effective prosecutor, but it takes 20 years if you want a specialist as is required in cases involving the complexities of large scale white-collar financial crime. 149

149 GIATOC 2022 https://www.businesslive.co.za/fm/features/2022-09-21-solving-sas-white-collar-crime-puzzle/.

The problem areas that we highlighted reveal that effective crime fighting must start prior to the involvement of authorities, by companies getting their houses in order and governing their affairs ethically and properly managing unlawful conduct. There is also a need to improve the obligations of companies to report internal occurrences of white-collar financial crime and to protect individuals who want to volunteer information about such occurrences to the authorities. Penalising wrongdoers may not always be the solution to the problem and there ought to be more scope for constructive strategies to compel companies to bring their internal affairs up to standard. From the law enforcement side, there is a need for dedicated skills and expertise to focus on white-collar financial crime. We propose the following measures.

The large-scale tendency of companies deliberately concealing unlawful activities or failing to investigate and report, either internally or to the authorities, contrasts with the tradition of corporate governance advanced by the King IV report. This includes an ethical culture, effective control and legitimacy. 150

150 IoDSA 2016 King IV Report 20.

found that only half of the companies that they surveyed are dedicating resources to risk assessment and fraud. 152

152 PWC 2020 https://www.pwc.co.za/en/assets/pdf/global-economic-crime-survey-2020.pdf 23.

Financial institutions, especially banks, are targeted by phishing scams and other cybercrimes committed through computers. 153

153 Chitimira and Ncube 2021 PELJ 23.

Once instances of white-collar financial crime have surfaced in an organisation, there is no general obligation to report it to the authorities. Section 34(1) of the Prevention and Combatting of Corrupt Activities Act 156

156 Prevention and Combatting of Corrupt Activities Act 12 of 2004 (the PCCAA).

In view of the rise of white-collar financial crime in companies, we propose that a wider duty to report such incidents be imposed by statute. In the first instance, provision should be made for a reporting duty regarding a more inclusive set of white-collar financial crimes than the subject of section 34(1) of the PCCAA. Second, the duty should be imposed on any individual and not only on those in positions of authority. Third, there should not be a monetary threshold for the crimes that are reportable. Last, a time limit to report a crime to the authorities should be imposed, as with comparable legislation, 158

158 For example, s 54 of the Cybercrimes Act 19 of 2020.

The Protected Disclosures Act 159

159 Protected Disclosures Act 26 of 2000 (the PDA).

In the NDP the government concedes shortfalls in the PDA, specifically that its scope is limited to whistle-blowers in a formal employment relationship to the exclusion of other persons in commercial relationships with the relevant organisation. The government is also aware that the PDA does not adequately protect the confidentiality of whistle-blowers. 163

163 NPC date unknown https://www.gov.za/sites/default/files/gcis_document/ 201409/ndp-2030-our-future-make-it-workr.pdf 450.

In our opinion broadening the range of potential whistleblowers, their protection and incentives, would be a constructive means to advance the reporting of white-collar financial crime incidents to the law enforcement authorities.

Several jurisdictions, including the United Kingdom and the United States of America, have incorporated Deferred Prosecution Agreement (DPA)

systems into their prosecutorial frameworks regarding white-collar financial crime of substantial magnitude. A DPA is a voluntary agreement between a prosecuting authority and a company (not an individual) in terms of which the prosecution of an offence is suspended in exchange for the company’s agreeing to fulfil certain conditions. This may include the full disclosure of incriminating facts, the repayment of criminal proceeds, the payment of a penalty, the implementation of a compliance policy, and assisting in an investigation. Should the company not comply with the agreed conditions, the prosecution may be resumed. 165

165 Yoh 2019 SCLR 137-138.

The CPA does not currently provide for the possibility of a formal agreement to suspend criminal proceedings or to resolve them without a conviction. 166

166 Section 105A of the CPA provides the possibility of a written plea and sentence agreement between the prosecution and the defence, but if such agreement is endorsed by the court it results in a conviction. See s 105A(8).

A DPA system is a formidable tool in the legal arsenal, affording both companies and the justice system a pragmatic means to address complex corporate misconduct while preserving valuable resources and offering incentives for responsible corporate behaviour. It presents a myriad of potential advantages in the legal landscape. Instances of large-scale corporate white-collar financial crime often usher in complexities and a substantial volume of documentary evidence that require specialised expertise to navigate. This can subsequently lead to protracted and costly litigation proceedings. In scenarios where the prosecution seeks to attribute liability to corporate directors, it may encounter prolonged defenses involving intricate management structures designed to shield these directors from culpability. The execution of a DPA, which temporarily or

permanently removes the matter from the prosecutorial system, can significantly yield time and save resources, all the while addressing the issue through an alternative approach.

To further incentivise companies to voluntarily publish the occurrence of wrongdoing, the prospect of engaging in discussions regarding a DPA could be presented as an attractive option, offering a more lenient outcome than what would be otherwise expected. There is the potential enticement for companies to implement internal compliance measures as an alternative to facing criminal convictions. A DPA can mitigate the collateral damage inflicted upon innocent third parties, including employees and contractors. By circumventing the reputational harm, lost contracts and diminished share prices that often accompany a criminal conviction, a DPA may play a valuable role in preserving the interests of these stakeholders.

There are currently three notable law enforcement agencies in South Africa that combat large-scale white-collar financial crime in the private sector: the Commercial Crime Unit, the DPCI of the SAPS and the Commercial Crime Unit of the NPA. The mandates of the SAPS units are susceptible to undue interference from criminals, specifically organised crime syndicates, as has been shown by the history of some past National Commissioners of the SAPS. The NPA's Specialised Commercial Crime Unit is limited to the matters which are referred to it by either the DPCI or the NDPP. This means that the unit does not have the discretion to investigate cases on its own initiative, which can lead to delays and inefficiencies.

In order to address these shortcomings, we propose the establishment of a single crime unit dedicated to large-scale or very serious instances of financial white-collar crime in the private sector, in relation to its complexity, seriousness, impact or repercussions. This unit ought to have a wide discretion to decide which matters to investigate and ought to be equipped with the intelligence gathering, investigative powers, and prosecution capabilities previously held by the DSO. It would be suitably located under the NPA, as the only State agency with both investigative and prosecuting powers.

Although there is a strong case to be made for an anti-corruption unit to report to Parliament, 169

169 Moosa 2023 https://bd.pressreader.com/article/281608130119083.

white-collar financial crimes in the private sector. We do not advance that the proposed unit falls under the direct supervision of the legislative branch.

We believe that the establishment of a single crime unit would be a significant step in the fight against large-scale white-collar financial crime in the private sector. This unit would be better equipped to investigate and prosecute these crimes, and it would be less susceptible to political interference.

The mere appointment of additional prosecutors to the NPA would not address its challenges in retaining and developing the skills necessary to navigate the complex and specialised field of white-collar financial crime. This can be achieved only if there is a dedicated approach in the NPA aimed at skills transfer. This ought to be augmented with specialised training. Law enforcement institutions should provide courses in forensic investigations. 170

170 Ocansey 2017 European Scientific Journal 388.

Considering the magnitude and intricacy of certain white-collar financial crime investigations, South African companies employ corporate investigators, including corporate, private and forensic accountants, auditors and legal professionals, for their internal inquiries into such matters. In other jurisdictions it is not uncommon for companies to also engage the services of social workers, criminologists and loss prevention specialists. 172

172 Gottschalk 2014 Journal of Investment Compliance 57; Kennedy 2013 Journal of Applied Social Science 233.

and the DCPI. 174

174 Mathe 2021 https://mg.co.za/business/2021-03-19-saps-misplaced-financial-priorities-inhibit-it-from-tackling-commercial-crimes/.

The NPA ascribes its consistent delay in prosecuting state capture to a scarcity of specialised forensic accountants, auditors and financial investigators among its personnel. 175

175 Mkentane 2023 https://www.businesslive.co.za/bd/national/2023-11-22-investigating-directorate-blames-lack-of-skills-for-its-court-defeats/.

We have explored the concept of white-collar financial crime and the significance of financial crime in terms of the FSR Act. As shown by our analysis, South Africa has a robust legal framework of regulatory, policing, and prosecuting authorities to combat white-collar financial crime. As further shown, despite this, the law enforcement agencies are facing an uphill battle due to challenges experienced within the existing framework.

The problem areas that we have highlighted show that the obstacles to combatting white-collar financial crime are not solely in the governmental sphere but start at the grass-roots level of inadequate corporate governance in companies and a lack of disclosure to the authorities. White-collar financial crime is a societal problem which calls for interventions on a broader scale than merely the governmental level. We accordingly propose that the broad approach should be one of a partnership between the State and private industry to address the issue. Commensurately, the focus ought to be wider than leaving it to the authorities to conduct crime fighting on their own. More should be expected from the way corporations conduct their internal affairs to let the authorities know about wrongdoing in their midst. The private sector should also assist the State with financial help to carry the costs of expert assistance in the prosecution process. It is also required that the State dedicate more focus to large scale white-collar financial crime in the structures and personnel required to combat this tendency.

We have highlighted some suggested areas of improvement, although we know our suggestions seek to address the symptoms but not the underlying cause of white-collar financial crime. This is because the root lies beyond our reach, namely the fibre of society and the ethos in companies that are increasingly deviating from the path that ought to be expected of a sensible citizenry. An ultimate solution can be achieved only by developing an unwavering societal focus and commitment to improvement for the good of all.

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Gottschalk 2010 Journal of Financial Crime

Gottschalk P "Categories of Financial Crime" 2010 Journal of Financial Crime 441-458

Gottschalk 2014 Journal of Investment Compliance

Gottschalk P "Characteristics of Financial Crime Investigation Reports by Fraud Examiners" 2014 Journal of Investment Compliance 57-66

Gottschalk Explaining White-Collar Crime

Gottschalk P Explaining White-Collar Crime: The Concept of Convenience in Financial Crime Investigations (Springer New York 2016)

Gottschalk et al 2011 International Journal of Information Management

Gottschalk P et al "Information Management for Investigation and Prevention of White-Collar Crime" 2011 International Journal of Information Management 226-233

Hansen 2009 Journal of Financial Crime

Hansen LL "Corporate Financial Crime: Social Diagnosis and Treatment" 2009 Journal of Financial Crime 28-40

IoDSA King IV Report

Institute of Directors South Africa 2016 King IV Report on Corporate Governance for South Africa (IoDSA Johannesburg 2016)

Kanu 2015 International Journal of Small Business and Entrepreneurship Research

Kanu AM "The Effect of Corruption on Small and Medium Enterprises: Perspectives from a Developing Country" 2015 International Journal of Small Business and Entrepreneurship Research 12-27

Kasipo 2016 AMLJA

Kasipo M "Governing White-Collar Financial Crime in South Africa: The Challenges of a State-Centric Approach" 2016 AMLJA 5-14

Kawadza 2015 SA Merc LJ

Kawadza H "The Liability Regime for Insider dealing Violations in South Africa: Where We Have Been, Where We Are" 2015 SA Merc LJ 383-400

Kennedy 2013 Journal of Applied Social Science

Kennedy DB "Applications of Forensic Sociology and Criminology to Civil Litigation" 2013 Journal of Applied Social Science 233-247

Lekubu 2019 Acta Criminologica

Lekubu BK "Improving the Effectiveness of the South African Anti-Corruption Agencies and Strategies: Lessons from Botswana, Hong Kong and Singapore" 2019 Acta Criminologica: African Journal of Criminology and Victimology 47-90

Magobotiti 2021 TRW

Magobotiti CD "An Assessment of Sentencing Approaches to Persons Convicted of White-Collar Financial Crime in South Africa" 2021 TRW 102-119

Marais et al 2020 Without Prejudice

Marais P et al "Addressing the Corruption Challenge" 2020 Without Prejudice 28-30

Ocansey 2017 European Scientific Journal

Ocansey EOND "Forensic Accounting and the Combating of Economic and Financial Crimes in Ghana" 2017 European Scientific Journal 379-393

Ogbuagu, Ubi and Effiom 2014 Journal of Economics and Sustainable Development

Ogbuagu U, Ubi P and Effiom L "Corruption and Infrastructural Decay: Perceptible Evidence from Nigeria" 2014 Journal of Economics and Sustainable Development 20-27

Saddiq and Abu Baker 2019 Journal of Financial Crime

Saddiq SA and Abu Bakar AS "Impact of Economic and Financial Crimes on Economic Growth in Emerging and Developing Countries: A Systematic Review" 2019 Journal of Financial Crime 910-920

Simpson and Koper 1992 Criminology

Simpson SS and Koper CS "Deterring Corporate Crime" 1992 Criminology 347-376

Toner 2009 Journal of Financial Crime

Toner GA "New Ways of Thinking about Old Crimes: Prosecuting Corruption and Organized Criminal Groups Engaged in Labor-Management Racketeering" 2009 Journal of Financial Crime 41-59

Van der Linde 2022 PELJ

Van der Linde KE "The Steinhoff Corporate Scandal and the Protection of Investors Who Purchased Shares on the Secondary Market" 2022 PELJ 1-23

Watney 2019 TSAR

Watney M "Highlighting Flaws in the Prevention and Combating of Corrupt Activities Act 112 of 2004" 2019 TSAR 749-756

Yoh 2019 SCLR

Yoh LW "The United Kingdom's Deferred Prosecution Agreement Regime Five Years On: Is It an Effective Tool in Addressing Economic Crime Perpetrated by Companies?" 2019 SCLR 137-150

Case law

Glenister v President of the Republic of South Africa 2009 1 SA 287 (CC)

Glenister v President of the Republic of South Africa 2011 3 SA 347 (CC)

Helen Suzman Foundation v President of the Republic of South Africa; Glenister v President of the Republic of South Africa 2015 1 BCLR 1 (CC)

Legislation

Banks Act 94 of 1990

Collective Investment Schemes Control Act 45 of 2002

Companies Act 71 of 2008

Constitution of the Republic of South Africa, 1996

Co-operative Banks Act 40 of 2007

Credit Rating Services Act 24 of 2012

Criminal Law Amendment Act 105 of 1997

Criminal Procedure Act 51 of 1977

Cybercrimes Act 19 of 2020

Financial Advisory and Intermediary Services Act 37 of 2002

Financial Institutions (Protection of Funds) Act 28 of 2001

Financial Intelligence Center Act 38 of 2001

Financial Markets Act 19 of 2012

Financial Sector Regulation Act 9 of 2017

Financial Supervision of the Road Accident Fund Act 8 of 1993

Financial Services Board Act 97 of 1990

Friendly Societies Act 25 of 1956

Long-term Insurance Act 52 of 1998

Magistrates' Courts Act 32 of 1944

Local Government: Municipal Finance Management Act 56 of 2003

Mutual Banks Act 124 of 1993

National Credit Act 34 of 2005

National Prosecuting Authority Act 32 of 1998

National Prosecuting Authority Amendment Act 56 of 2008

Pension Funds Act 24 of 1956

Prevention and Combatting of Corrupt Activities Act 12 of 2004

Prevention of Organised Crime Act 121 of 1998

Protected Disclosures Act 26 of 2000

Protection of Constitutional Democracy against Terrorist and Related Activities Act 33 of 2004

Short-term Insurance Act 53 of 1998

South African Police Service Act 68 of 1995

South African Police Service Amendment Act 57 of 2008

South African Police Service Amendment Act 10 of 2012

South African Reserve Bank Act 90 of 1989

Special Investigating Units and Special Tribunals Act 74 of 1996

Superior Courts Act 10 of 2013

Tax Administration Act 28 of 2011

Government publications

GN R217 in GG 37477 of 27 March 2014

GN R853 in GG 41060 of 22 August 2017

GN R169 in GG 41549 of 29 March 2018

Internet sources

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Anon date unknown Report of the Judicial Commission of Inquiry into Allegations of Impropriety at the Public Investment Corporation https://www.justice.gov.za/commissions/pic/docs/PIC-Commission-Report.pdf accessed 16 August 2023

Bloomberg 2023 https://businesstech.co.za/news/business-opinion/ 723418/south-africa-wont-get-off-the-grey-list-by-2025-new-firstrand-ceo/

Bloomberg 2023 South African Won't Get Off the Grey List by 2025: New FirstRand CEO https://businesstech.co.za/news/business-opinion/723418/ south-africa-wont-get-off-the-grey-list-by-2025-new-firstrand-ceo/ accessed 9 October 2023

Cronje 2023 https://www.news24.com/fin24/companies/sa-ponzi-scheme-mti-ordered-to-pay-r32bn-to-thousands-of-us-victims-20230915

Cronje J 2023 SA Ponzi Scheme MTI Ordered to Pay R32bn to Thousands of US Victims https://www.news24.com/fin24/companies/sa-ponzi-scheme-mti-ordered-to-pay-r32bn-to-thousands-of-us-victims-20230915 accessed 21 September 2023

Ensor 2023 https://bd.pressreader.com/article/281599540154889

Ensor L 2023 Big Fish in NPA Net, Says Batohi https://bd.pressreader.com/article/281599540154889 accessed 23 October 2023

Ensor 2023 https://bd.pressreader.com/article/281569475486615

Ensor L 2023 Greylisted SA is Making Progress https://bd.pressreader.com/article/281569475486615 accessed 30 November 2023

Fischer-French 2023 https://www.news24.com/citypress/business/ponzi-scheme-involving-more-than-2-000-clients-and-more-than-r3-billion-shakes-northern-suburbs-20231029

Fischer-French M 2023 Ponzi Scheme Involving More than R3 Billion Bankrupts Entire Families, Affects Over 2000 People https://www.news24.com/citypress/business/ponzi-scheme-involving-more-than-2-000-clients-and-more-than-r3-billion-shakes-northern-suburbs-20231029 accessed 31 October 2023

GIATOC 2022 https://www.businesslive.co.za/fm/features/2022-09-21-solving-sas-white-collar-crime-puzzle/

Global Initiative Against Transnational Organised Crime 2022 Solving SA's White-Collar Financial Crime Puzzle https://www.businesslive.co.za/fm/ features/2022-09-21-solving-sas-white-collar-crime-puzzle/ accessed 17 August 2023

Gumede 2022 https://www.businesslive.co.za/bd/companies/2022-07-25-former-tongaat-executives-r35bn-fraud-case-moves-to-high-court/

Gumede M 2022 Former Tongaat Execs' R3.5bn Fraud and Racketeering Case Moves to High Court https://www.businesslive.co.za/bd/ companies/2022-07-25-former-tongaat-executives-r35bn-fraud-case-moves-to-high-court/ accessed 18 August 2023

Hoffman 2012 https://accountabilitynow.org.za/hawks-saps-neither-effective-sufficiently-independent/

Hoffman P 2012 Hawks in SAPS are Neither Effective nor Sufficiently Independent https://accountabilitynow.orga.za/hawks-saps-neither-effective-sufficiently-independent/ accessed 1 September 2023

Interpol 2023 https://www.interpol.int/en/Crimes/Financial-crime

Interpol 2023 Financial Crime https://www.interpol.int/en/Crimes/Financial-crime accessed 23 June 2023

Interpol 2023 https://www.interpol.int/en/Crimes/Financial-crime/Our-role-in-fighting-financial-crime

Interpol 2023 Our Role in Fighting Financial Crime https://www.interpol.int/en/Crimes/Financial-crime/Our-role-in-fighting-financial-crime accessed 23 June 2023

Investec 2023 https://www.investec.com/en_za/focus/economy/its-official-south-africa-greylisted-.html

Investec 2023 South Africa Greylisted: What Does It Mean for You? https://www.investec.com/en_za/focus/economy/its-official-south-africa-greylisted-.html accessed 26 August 2023

ISS 2023 https://issafrica.org/iss-today/the-problem-with-south-african-criminal-justice-performance-indicators

Institute for Security Studies 2023 The Problem with South African Criminal Justice Performance Indicators https://issafrica.org/iss-today/the-problem-with-south-african-criminal-justice-performance-indicators accessed 27 August 2023

Jika 2023 https://times-e-editions.pressreader.com/article/28153511 5725086

Jika T 2023 Budget Cut Shock for NPA's Crime Fight https://times-e-editions.pressreader.com/article/281535115725086 accessed 20 November 2023

Khampepe 2006 https://www.gov.za/sites/default/files/gcis_document/ 201409/khampeperptfinal-feb060.pdf

Khampepe S 2006 Khampepe Commission of Inquiry into the Mandate and Location of the Directorate of Special Operations Final Report https://www.gov.za/sites/default/files/gcis_document/201409/khampeperptfinal-feb060.pdf accessed 20 August 2023

Levine 2012 https://ecommons.cornell.edu/server/api/core/bitstreams/ 6ccf8e57-3a57-4813-ae16-8c6b59217aaa/content

Levine L 2012 Economic Growth and the Unemployment Rate https://ecommons.cornell.edu/server/api/core/bitstreams/6ccf8e57-3a57-4813-ae16-8c6b59217aaa/content accessed 30 January 2024

Maleke 2023 https://www.iol.co.za/business-report/companies/eoh-rights-its-troubled-house-after-corruption-blow-for-irregular-dealings-with-the-department-of-water-and-sanitation-088ff223-3d9b-4c65-bb42-c2355fddfe4c

Maleke D 2023 EOH Rights Its Troubled House after Corruption Blow for Irregular Dealings with the Department of Water and Sanitation https://www.iol.co.za/business-report/companies/eoh-rights-its-troubled-house-after-corruption-blow-for-irregular-dealings-with-the-department-of-water-and-sanitation-088ff223-3d9b-4c65-bb42-c2355fddfe4c accessed 18 August 2023

Masweneng 2023 https://times-e-editions.pressreader.com/article/ 282226605445166

Masweneng K 2023 Illicit Trade Out of Control in SA https://times-e-editions.pressreader.com/article/282226605445166 accessed 13 November 2023

Mathe 2021 https://mg.co.za/business/2021-03-19-saps-misplaced-financial-priorities-inhibit-it-from-tackling-commercial-crimes/

Mathe T 2021 SAPS' Misplaced Financial Priorities Inhibit It from Tackling Commercial Crimes https://mg.co.za/business/2021-03-19-saps-misplaced-financial-priorities-inhibit-it-from-tackling-commercial-crimes/ accessed 7 September 2023

Maqhina 2023 https://themercury.pressreader.com/article/ 281625310056585

Maqhina M 2023 Whistle-Blowers to Be Given Incentives https://themercury.pressreader.com/article/281625310056585 accessed 28 November 2023

Mkentane 2023 https://www.businesslive.co.za/bd/national/2023-11-22-investigating-directorate-blames-lack-of-skills-for-its-court-defeats/

Mkentane L 2023 Investigating Directorate Blames Lack of Skills for Its Court Defeats https://www.businesslive.co.za/bd/national/2023-11-22-investigating-directorate-blames-lack-of-skills-for-its-court-defeats/ accessed 23 November 2023

Moosa 2023 https://bd.pressreader.com/article/281608130119083

Moosa T 2023 Proposed Anti-Graft Body 'Will Lack Independence' https://bd.pressreader.com/article/281608130119083 accessed 26 October 2023

Mutau 2018 https://www.corruptionwatch.org.za/wp-content/uploads/2018/ 10/VBS-Mutual-Bank-The-Great-Bank-Heist.pdf

Mutau T 2018 VBS Mutual Bank, the Great Bank Heist, Investigator's Report to Prudential Authority https://www.corruptionwatch.org.za/wp-content/uploads/2018/10/VBS-Mutual-Bank-The-Great-Bank-Heist.pdf accessed 18 August 2023

National Treasury 2011 http://www.treasury.gov.za/twinpeaks/ 20131211%20%20Item%202%20A%20safer%20financial%20sector%20to%20serve%20South%20Africa%20better.pdf

Department of National Treasury (RSA) 2011 A Safer Financial Sector to Serve South Africa Better http://www.treasury.gov.za/twinpeaks/ 20131211%20%20Item%202%20A%20safer%20financial%20sector%20to%20serve%20South%20Africa%20better.pdf accessed 15 June 2023

National Treasury 2023 https://www.treasury.gov.za/comm_media/

press/2023/2023022501%20FATF%20Grey%20Listing%20Fact%20Sheet.pdf

Department of National Treasury (RSA) 2023 Fact Sheet. What Does FATF Greylisting Mean for a Country? https://www.treasury.gov.za/comm_media/ press/2023/2023022501%20FATF%20Grey%20Listing%20Fact%20Sheet.pdf accessed 26 August 2023

NPA date unknown https://www.npa.gov.za/asset-forfeiture-unit

National Prosecuting Authority date unknown Asset Forfeiture Unit https://www.npa.gov.za/asset-forfeiture-unit accessed 21 August 2023

NPA date unknown https://www.npa.gov.za/investigating-directorate

National Prosecuting Authority date unknown Investigating Directorate https://www.npa.gov.za/investigating-directorate accessed 21 August 2023

NPA date unknown https://www.npa.gov.za/specialised-commercial-crime-unit

National Prosecuting Authority date unknown Specialised Commercial Crime Unit https://www.npa.gov.za/specialised-commercial-crime-unit accessed 20 August 2023

NPA date unknown https://www.npa.gov.za/sites/default/files/uploads/ NPA%20Annual%20Report%202022-23.pdf

National Prosecuting Authority date unknown Annual Report 2022-2023 https://www.npa.gov.za/sites/default/files/uploads/NPA%20Annual%20Report%202022-23.pdf accessed 30 August 2023

NPC date unknown https://www.gov.za/sites/default/files/gcis_document/ 201409/ndp-2030-our-future-make-it-workr.pdf

National Planning Commission date unknown National Development Plan 2030: Our Future – Make It Work https://www.gov.za/ sites/default/files/gcis_document/201409/ndp-2030-our-future-make-it-workr.pdf accessed 27 August 2023

Nugent 2018 https://www.thepresidency.gov.za/sites/default/files/ SARS%20Commission%20Final%20Report.pdf

Nugent R 2018 Commission of Inquiry into Tax Administration and Governance by SARS https://www.thepresidency.gov.za/sites/default/files/ SARS%20Commission%20Final%20Report.pdf accessed 16 August 2023

PWC 2020 https://www.pwc.co.za/en/assets/pdf/global-economic-crime-survey-2020.pdf

Priceweaterhousecoopers 2020 Economic Crime – When the Boardroom Becomes the Battlefield: PWC's Global Economic Crime and Fraud Survey 7th South African Edition https://www.pwc.co.zaC/en/assets/pdf/global-economic-crime-survey-2020.pdf accessed 17 August 2023

Rajendaran 2012 http://www.ifmr.co.in/blog/2012/03/06/approaches-to-financial-regulation-and-the-case-of-south-africa/

Rajendaran D 2012 Approaches to Financial Regulation and the Case of South Africa 2012 http://www.ifmr.co.in/blog/2012/03/06/approaches-to-financial-regulation-and-the-case-of-south-africa/ accessed 7 June 2023

Rondganger 2023 https://www.iol.co.za/news/crime-and-courts/new-global-organised-crime-index-reveals-how-the-mafia-has-taken-over-south-africa-d93ed5a1-790f-4f25-8e5a-720735ea6449

Rondganger L 2023 New Global Organised Crime Index reveals how the Mafia has taken over South Africa https://www.iol.co.za/news/crime-and-courts/new-global-organised-crime-index-reveals-how-the-mafia-has-taken-over-south-africa-d93ed5a1-790f-4f25-8e5a-720735ea6449 accessed 27 September 2023

SALC 2002 https://www.justice.gov.za/salrc/reports/r_prj73_intrep6_ 2002aug.pdf

South African Law Commission 2002 Out of Court Settlements in Criminal Cases https://www.justice.gov.za/salrc/reports/r_prj73_intrep6_2002 aug.pdf accessed 1 September 2023

Sewsunker 2023 https://www.citizen.co.za/witness/news/detective-shortage-in-sa/

Sewsunker A 2023 Detective Shortage in SA https://www.citizen.co.za/witness/news/detective-shortage-in-sa/ accessed 23 October 2023

Singh 2023 https://thestar.pressreader.com/article/281479281137225

Singh S 2023 Detective Shortage Now at More Than 8 000 https://thestar.pressreader.com/article/281479281137225 accessed 13 November 2023

SIU date unknown https://www.siu.org.za

Special Investigating Unit date unknown Special Investigating Unit https://www.siu.org.za accessed 21 August 2023

UN date unknown https://www.un.org/sustainabledevelopment/sustainable-development-goals/

United Nations date unknown Sustainable Development Goals https://www.un.org/sustainabledevelopment/sustainable-development-goals/ accessed 14 September 2023

Zondo date unknown https://www.statecapture.org.za/site/files/ announcements/672/OCR_version_-_State_Capture_Commission_Report_Part_VI_Vol_IV_-_Recommendations.pdf

Zondo RMM date unknown Judicial Commission of Inquiry into State Capture Report: Part VI Volume 4: All the Recommendations https://www.statecapture.org.za/site/files/announcements/672/OCR_version_-_State_Capture_Commission_Report_Part_VI_Vol_IV_-_Recommendations.pdf accessed 16 August 2023

List of Abbreviations